Modified Final Judgment
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Case 1:11-cv-00106-RJL Document 36 Filed 08/21/13 Page 1 of 33 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA, STATE OF CALIFORNIA, STATE OF FLORIDA, STATE OF MISSOURI, STATE OF TEXAS, and STATE OF WASHINGTON, Plaintiffs, CASE: 1: 11-cv-00 106 v. JUDGE: Leon, Richard J. COMCAST CORPORATION, GENERAL ELECTRIC COMPANY, and NBC UNIVERSAL, INC., Defendants. MODIFIED FINAL JUDGMENT WHEREAS, Plaintiffs, the United States of America and the States of California, Florida, Missouri, Texas, and Washington, filed their Complaint on January 18,2011, alleging that Defendants propose to enter into a joint venture that will empower Defendant Comcast Corporation to block competition from video programming distribution competitors in violation of Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18, and Plaintiffs and Defendants, by their respective attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law, and without this Final Judgment constituting any evidence against or admission by any party regarding any issue of fact or law; AND WHEREAS, Defendants agree to be bound by the provisions of this Final Judgment pending its approval by the Court; Case 1:11-cv-00106-RJL Document 36 Filed 08/21/13 Page 2 of 33 AND WHEREAS, Plaintiffs require Defendants to agree to undertake certain actions and refrain from certain conduct for the purpose of remedying the loss of competition alleged in the Complaint; AND WHEREAS, Defendants have represented to the United States that the actions and conduct restrictions can and will be undertaken and that Defendants will later raise no claim of hardship or difficulty as grounds for asking the Court to modify any of the provisions contained below; NOW THEREFORE, before any testimony is taken, without trial or adjudication of any issue offact or law, and upon consent of Defendants, it is ORDERED, ADJUDGED, AND DECREED: I. JURISDICTION This Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief may be granted against Defendants under Section 7 ofthe Clayton Act, as amended, 15 U.S.C. § 18. II. DEFINITIONS As used in this Final Judgment: A. "AAA" means the American Arbitration Association. B. "Affiliated" means directly or indirectly controlling, controlled by, or under common control with a Person. C. "Broadcast Network" means The Walt Disney Company (ABC), CBS Inc. (CBS), News Corporation (FOX), NBCU (NBC and Telemundo), or any other Person that provides live or recorded Video Programming for broadcast over a group of local television stations. 2 Case 1:11-cv-00106-RJL Document 36 Filed 08/21/13 Page 3 of 33 D. "Broadcast Network Peer" means (1) CBS Inc. (CBS), News Corporation (FOX), or The Walt Disney Company (ABC); or (2) any of the top four Broadcast Networks, measured by the total annual net revenue earned by the Broadcast Network from the broadcast of live or recorded Video Programming over a group of local television stations. Defendants are not Broadcast Network Peers, even if they are one of the top four Broadcast Networks. E. "Business Model" means the primary method by which Video Programming is monetized (e.g., ad-supported, subscription without ads, subscription with ads, electronic sell through, or pay per view/transactional video-on-demand). F. "Cable Programmer" means Time Warner, Inc., The Walt Disney Company, News Corporation, Viacom, Inc., NBCU, or any other Person that provides Video Programming for distribution through MVPDs. A Person that provides Video Programming to MVPDs solely as a Broadcast Network or as a Network Affiliate, 0&0, or local television station operating within its licensed territory is not a Cable Programmer. G. "Cable Programmer Peer" means (1) News Corporation, Time Warner, Inc., Viacom, Inc., or The Walt Disney Company; or (2) any of the top five Cable Programmers, measured by the total annual net revenue earned by the Cable Programmer from its cable networks, as reported by SNL Kagan (or another source commonly relied upon in the television industry), excluding revenues earned from regional sports networks. Defendants are not Cable Programmer Peers, even if they are one of the top five Cable Programmers. 3 Case 1:11-cv-00106-RJL Document 36 Filed 08/21/13 Page 4 of 33 H. "Comcast" means Comcast Corporation, a Pennsylvania corporation with its principal place of business in Philadelphia, Pennsylvania, its successors and assigns, and its Subsidiaries (whether partially or wholly owned), divisions, groups, Partnerships, and Joint Ventures, and their directors, officers, managers, agents, and employees. I. "Defendants" means Comcast and NBCU, acting individually or collectively, as appropriate. Where the Final Judgment imposes an obligation to engage in or refrain from engaging in certain conduct, that obligation shall apply to each Defendant individually and to any Joint Venture established by any two or more Defendants. J. "Department of Justice" means the United States Department of Justice, Antitrust Division. K. "Experimental Deal" means an agreement between an OVD and a Peer for a term of six months or less. L. "Film" means a feature-length motion picture that has been theatrically released. M. "Final Offer" means a proposed contract identifying the Video Programming Defendants are to provide to OVDs pursuant to Section IV.A or IV.B of this Final Judgment and containing the proposed price, terms, and conditions on which Defendants will provide that Video Programming. N. "General Electric" means General Electric Company, a New York corporation with its principal place of business in Fairfield, Connecticut, its successors and assigns, and its Subsidiaries (whether partially or wholly owned), divisions, groups, 4 Case 1:11-cv-00106-RJL Document 36 Filed 08/21/13 Page 5 of 33 Partnerships, and Joint Ventures, and their directors, officers, managers, agents, and employees. 0. "Hulu" means Hulu, LLC, a Delaware limited liability company with its headquarters in Los Angeles, California, its successors and assigns, and its Subsidiaries (whether partially or wholly owned), divisions, groups, Partnerships, and Joint Ventures, and their directors, officers, managers, agents, and employees. P. "Internet Access Service" means a mass-market retail communications service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial- up Internet access service. Internet Access Service does not include virtual private network services, content delivery network services, multichannel video programming services, hosting or data storage services, or Internet backbone services (if those services are separate from Internet Access Services). Q. "MVPD" means a multichannel video programming distributor as that term is defined on the date of entry of this Final Judgment in 47 C.P.R. § 76.1200(b). R. "NBCU" means NBC Universal, Inc., a Delaware corporation with its principal place of business in New York, New York, its successors and assigns, and its Subsidiaries (whether partially or wholly owned), divisions, groups, Partnerships, and Joint Ventures, and their directors, officers, managers, agents, and employees. S. "Network Affiliate" means a local television station that broadcasts some or all of the Video Programming of Defendants' Broadcast Networks (i.e., NBC or 5 Case 1:11-cv-00106-RJL Document 36 Filed 08/21/13 Page 6 of 33 Telemundo). A Network Affiliate is owned and operated by Persons other than Defendants. T. "0&0" means a local television station owned and operated by Defendants that broadcasts the Video Programming of one of Defendants' Broadcast Networks (i.e., NBC or Telemundo). U. "OVD" means any Person that distributes Video Programming in the United States by means of the Internet or another IP-based transmission path provided by a Person other than the OVD. This definition (1) includes an MVPD that offers Video Programming by means of the Internet or another IP-based transmission path outside its MVPD footprint as a service separate and independent of an MVPD subscription; and (2) excludes an MVPD that offers Video Programming by means of the Internet or another IP-based transmission path to homes inside its MVPD footprint as a component of an MVPD subscription. V. "Peer" means any Broadcast Network Peer, Cable Programmer Peer, or Production Studio Peer, its successors, assigns, and any Person that is managed or controlled by any Broadcast Network Peer, Cable Programmer Peer, or Production Studio Peer. Defendants are not Peers. W. "Person" means any natural person, corporation, company, partnership, joint venture, firm, association, proprietorship, agency, board, authority, commission, office, or other business or legal entity, whether private or governmental. X. "Plaintiff States" means the States of California, Florida, Missouri, Texas, and Washington. 6 Case 1:11-cv-00106-RJL Document 36 Filed 08/21/13 Page 7 of 33 Y. "Production Studio" means Time Warner, Inc. (Warner Bros. Television and Warner Bros. Pictures), News Corporation (20th Century Fox Television and 20th Century Fox), Viacom, Inc. (Viacom's television production subsidiaries and Paramount Pictures), Sony Corporation of America (Sony Pictures Television and Sony Pictures Entertainment), The Walt Disney Company (Disney-ABC Studios and the Walt Disney Motion Pictures Group), NBCU (Universal Pictures, Focus Films, and Universal Studios), and any other Person that produces Video Programming for distribution through Broadcast Networks or Cable Programmers. Z. "Production Studio Peer" means (I) News Corporation, Viacom, Inc., Sony Corporation of America, Time Warner, Inc., or The Walt Disney Company; or (2) any of the top six Production Studios, measured by the total annual net revenue earned by the Production Studio from the sale or licensing of Video Programming. Defendants are not Production Studio Peers, even if they are one of the top six Production Studios.